UNITED STATES, v. BAILEY

October 22, 1971

UNITED STATES OF AMERICA, PLAINTIFF,v.MELVIN BAILEY ET AL., DEFENDANTS.

The opinion of the court was delivered by: Will, District Judge.

MEMORANDUM OPINION

The initial issues presented by defendants' motions to
suppress handwriting exemplars given by them to the grand jury
that brought the instant indictment against them are (1) did
the decision of the United States Court of Appeals for the
Seventh Circuit in In Re Dionisio, 442 F.2d 276 (7th Cir.
1971) announce a new rule of law as opposed merely to applying
an old rule of law to new factual circumstances and, if the
answer to this question is affirmative, (2) should
Dionisio be applied retroactively to actions taken by grand
juries prior to the date of decision. If the answer to the
latter question is negative, no other issues relating to the
Fourth Amendment need be considered.

Certain of the petitioning defendants are charged with the
substantive offense of defrauding the United States
government, in violation of 18 U.S.C. § 1001 and 42 U.S.C. § 2703,
by the making of certain allegedly fraudulent written
statements and forged instruments. In addition, all defendants
are charged with conspiring in this way to defraud the United
States government in violation of 18 U.S.C. § 371. Each of the
moving defendants, under varying circumstances, provided the
Federal Bureau of Investigation, acting either as an
investigatory agency or as the agent of the grand jury, with
the handwriting exemplars he seeks here to have suppressed. All
exemplars were provided in the period from September 16, 1970,
through March 2, 1971. Some of the defendants provided their
exemplars only after being ordered to do so by the Chief Judge
and another District Judge of this Court, who granted the
motions of the government for orders directing then unindicted
defendants to provide handwriting exemplars for the grand jury.
On March 25, 1971, the Seventh Circuit decided Dionisio,
holding that, before a grand jury may compel a witness and
possible defendant to provide it with voice exemplars, some
showing of the reasonableness of this type of search and
seizure must be made to satisfy the requirements of the Fourth
Amendment.

I

The initial issue which arises is whether or not
Dionisio is a newly enunciated constitutional standard. If it
is, this Court is required to decide whether it should be
applied prospectively only or applied to all similar types of
seizures, irrespective of the date of the seizure. If Dionisio
is nothing more than another application to a new factual
situation of an existing constitutional standard, on the other
hand, then we will not be presented with the issue of
retroactivity or lack thereof, for it will be the older
principle which we would be enforcing and no question of
retroactivity would be involved. A review of Dionisio and prior
case law, therefore, is mandatory.

The most significant pre-Dionisio decision to which we must
look is Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22
L.Ed.2d 676 (1969). In that case, the police detained and
fingerprinted a large number of Negro youths in the course of
investigating an alleged rape when the assailant was described
only as a Negro youth. The Supreme Court invalidated a
conviction derived from the use of the fingerprints so
obtained, ruling that such an investigatory technique
constitutes an unreasonable seizure under the Fourth Amendment.
Thus, after Davis, it was patently clear to all law enforcement
officials that, without any showing of probable cause, they
could not effect a dragnet of all people whom they suspected
might have violated the law to obtain exemplars of their
physical characteristics.*fn1 Based primarily on
this decision, the Seventh Circuit concluded in
Dionisio that Davis applies with the same force to grand jury
investigations as it does to police investigations.

The defendants contend that Davis plus older Supreme Court
cases dealing with the relationship of the grand jury and the
Fourth Amendment*fn2 together render perfectly clear the
proposition that whatever the police may not do because of the
interdictions of the Fourth Amendment, neither may the grand
jury. Thus, they contend, Dionisio added nothing to the law and
no need exists, therefore, for this Court to determine whether
or not it applies retroactively.

We do not agree with the defendants' conclusion. We believe,
as did the Seventh Circuit, that the conclusion reached in
Dionisio is inescapable. But that does not mean that the
decision was not a significant step forward in clarifying the
application of the Fourth Amendment to searches and seizures by
grand juries. The Supreme Court in Davis concluded that the
police may not round up all possible suspects on mere suspicion
and compel them to provide exemplars of their physical
characteristics in the hope that the exemplars will provide
incriminating evidence. The Seventh Circuit concluded that the
same restrictions apply to a grand jury. It is obvious,
however, that Davis, prior to Dionisio, applied only to police
actions. Whether or not those same restrictions applied to
grand juries, which are not wholly identifiable with any one of
the three traditional branches of government, In Re April 1956
Term Grand Jury, 239 F.2d 263 (7th Cir. 1956), as opposed to
the police or the F.B.I., which clearly have no connections
with the judiciary, remained to be resolved in this Circuit
until Dionisio. Although Dianisio did not reverse
a prior rule which allowed grand juries to extract handwriting
exemplars notwithstanding the Fourth Amendment, it is
nevertheless clear that this decision did clarify the
application of the Fourth Amendment and Davis to grand juries,
placing them on the same plane as any other public
investigative body.

The Dionisio opinion itself reflects that the Seventh Circuit
was well aware it was announcing a new principle and rejecting
a contrary and prior accepted rule in at least one other
Circuit. The Court stated: "It may be argued that the fourth
amendment applies only to overbroad grand jury subpoenas
calling for documentary evidence." 442 F.2d at 279. In support
of this observation, the Court cited In Re Dymo Industries,
Inc., 300 F. Supp. 532 (N.D.Cal. 1969), aff'd, United States v.
Dymo Industries, Inc., 418 F.2d 500 (9th Cir. 1969), cert.
denied, 397 U.S. 937, 90 S.Ct. 946, 25 L.Ed.2d 116 (1970).*fn3
In Dymo, the District Court and the Ninth Circuit squarely
rejected the contention that seizures made by a grand jury
could be constitutionally accomplished only upon a showing of
probable cause and concluded that the Fourth Amendment's only
application to grand juries deals with overbroad documentary
subpoenas. This view of the relationship of the Fourth
Amendment to grand juries was rejected by the Seventh Circuit
in Dionisio.

Based upon the foregoing, we conclude that the Seventh
Circuit announced a new constitutional principle in
Dionisio that equated the grand jury to the police so far as
the Fourth Amendment is concerned. Only after this rule was
announced, did the proscriptions of Davis against dragnet
seizures by police become equally binding upon grand juries in
this Circuit. We conclude, therefore, that we are compelled to
determine the date from which Dionisio's mandate is to be
applied. Linkletter v. Walker,
381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

We have already indicated our view that Dionisio is a logical
extension of Davis. We believe it also to be a necessary
extension if Davis is not to become substantially meaningless.
Under the rule of Davis, police may not sweep the streets to
obtain evidence of a crime because to do so

* * * would subject unlimited numbers of innocent
persons to the harassment and ignominy incident
to involuntary detention. Nothing is more clear
than that the Fourth Amendment was meant to
prevent wholesale intrusions upon the personal
security of our citizenry * * *. Davis v.
Mississippi, 394 U.S. at 726-727, 89 S.Ct. at
1397.

If Dionisio is not valid, all that needs to be done to avoid
the interdictions of Davis is to empanel a grand jury and have
it direct law enforcement officers to round up all possible
suspects and compel each of them to provide the appropriate
exemplars. It would thus be possible to do indirectly that
which is prohibited from being done directly. The dragnet, the
harassment and ignominy would be no less offensive and
violative of the personal security of our citizens because it
was being done by the police under grand jury instructions than
if done as in Davis.

There is yet another reason, perhaps more compelling than
the one above, for concluding that the teachings of
Davis must apply to grand juries. Grand juries have
traditionally played two roles in Anglo-American jurisprudence,
with the two functions taking the grand jury conceptually in
opposite directions. On the one hand, the investigation of
possible offenses is clearly a prime function of the grand
jury. United States v. Neff, 212 F.2d 297 (3rd Cir. 1954);
United States v. Cleary, 265 F.2d 459 (2d Cir. 1959), cert.
denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959). On
the other hand, the grand jury has traditionally been
considered to be the primary bulwark of the innocent against
hasty, malicious and ...

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